Eight months later, Edward Snowden defies labels

Former government contractor Edward Snowden, who has divulged significant information on the operations of the National Security Administration, continues to inspire anger from top government officials and admiration from advocates of transparency who say he has sparked necessary changes. And with two judges recently reaching conflicting conclusions on the legality of the NSA methods he revealed back in May, that debate is unlikely to end anytime soon.

Living in Moscow with temporary asylum from the Russian government, Snowden said in an interview with the Washington Post last week that his mission has been accomplished because he was able to spark a debate in the U.S. about the NSA’s surveillance method. “I’ve won,” he said.

Still, his detractors at home say the leaks have done grave harm to the U.S. security apparatus. Former NSA Director Michael Hayden said on CBS’ “Face the Nation” that the NSA was “infinitely weaker” because it had revealed the “plumbing” of how America collects intelligence.

“This is the most serious hemorrhaging of American secrets in the history of American espionage,” Hayden said. “What I'm most afraid of is that we will reveal our sources and methods, our tactics, techniques and procedures to people around the world who will the American nation and the American people harm.”

“He asked us not to dump out the documents. If he'd wanted to do that, he would've done it himself,” Gellman said. “He wanted us to use our judgment about what was newsworthy, what raised big policy questions for the American people and would do too much harm, what would be harmful.  And so we consult on every story.  The NSA, the director of national intelligence knows every detail in every story before we publish it.  They have an opportunity to tell us what they think would be especially harmful. Almost always we accede to those requests.”

Hayden said his opinion of Snowden has changed over time. “I used to say he was a defector,” he said. Now, he thinks a more appropriate word is, “traitor.” He cited reports that Snowden wrote open letters to countries like Brazil and Germany, offering those countries help in investigating U.S. eavesdropping. Snowden later clarified, however, that he is not looking to swap information for asylum.

“He exposed prima facie evidence regarding the extent of the surveillance program, its unconstitutionality and the fact we're losing huge amounts of trust overseas in terms of NSA, who's supposed to be protecting the rights of citizens, but also United States is supposed to be the bastion of freedom and liberty and rights," Drake said. "It's clearly losing out in the court of world opinion.”

Gellman defended Snowden’s fidelity to the U.S. 

“There is no evidence on public record that he has defected or betrayed his country. He has stated that his intention to allow his country to make decisions for itself. And there's simply no evidence on the public record or even in private intelligence, according to the officials I talked to, that he has transferred his loyalty or tried to assist a hostile power,” he said.

Jesselyn Radack, a Snowden legal advisor who works for the Government Accountability Project, called Snowden a “patriotic American” who loves his country and wanted to come back “if conditions were right.”

It is the administration’s position that Snowden would be afforded due process and a trial for the felony charges of espionage and theft and conversion of government property if he wants to return to the U.S.  But Radack argued that Snowden would never receive a fair trial in the U.S. because he’s being treated as a spy.

“I don't think he should have any trials, because he's been granted asylum because he has a reasonable fear of political persecution predicated on the very Espionage Act charges with which he has faced,” she said.

Drake, who was initially charged under the Espionage Act, concurred that Snowden would not receive a fair trial.

“Whistle blowing now is extraordinarily dangerous.  It ends up your First Amendment rights are criminalized and your country will be exposed, especially national security related matters, that somehow the imprimatur of national security trumps the constitution.  It trumps the rule of law, and it trumps what I believe most Americans believe is reasonable expectation of privacy,” he said.

Snowden’s leaks have exposed to NSA to some of the greatest scrutiny since its inception and sparked lawsuits challenging the legality of its surveillance.

Two U.S. district judges, William Pauley and Richard Leon, reached opposite conclusions about the NSA’s bulk collection of Americans’ telephone records. Leon ruled earlier this month that the “almost Orwellian” technology likely violates the Constitution’s ban on unreasonable searches. Pauley ruled that the collection was legal, citing the Sept. 11 attacks as evidence that it can be a valuable tool to fight terrorism.

Hayden said Leon ignored precedent from a 1979 Supreme Court decision, Smith v. Maryland, that ruled people can have no expectation of privacy when they provide information to a third party, like a phone company.

“Our thinking should be focused on the facts of the case and not the emotion of the case. ” Hayden said. “This is not a broad fishing expedition. Granted, millions and billions of phone records a day are acquired by the National Security Agency. But what follows… is really important.  What happens to that data?  How often is that data touched?  And the truth is, it's touched 200-300 times per year, and only based upon a reasonable, articulable suspicion that that number is affiliated with terrorism.”

Later in the show, Radack challenged Pauley’s decision by saying that Leon’s suggestion that NSA surveillance might not be legal mirrored recommendations from a review group commissioned by President Obama on ways to reform data collection to better protect Americans’ privacy.

“I feel very much that that vindicates Snowden as a whistleblower,” she said. She also argued that choosing to give personal data to Facebook is different than the government seeking out information that has not been willingly given.